Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, Nos. 117, 118, 457, and 458, in case of Commonwealth of Pennsylvania v. Patrick Green.
Carolyn Engel Temin, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Jay S. Gottlieb, with him Needleman, Needleman, Tabb & Eisman, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., concurs in the result.
[ 232 Pa. Super. Page 136]
This appeal by the Commonwealth raises the question whether an order by a judge at a preliminary hearing separating trials of offenses arising from the same episode is a violation of the statutory bar against subsequent prosecution as set forth in Section 110 of the Crimes Code.*fn1 Since the hearing judge's order was consented to by the defendant, we hold that he has waived any right to object under the statute or under the Supreme Court decision, Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973); addendum opinion, 455 Pa. 622, 314 A.2d 854 (1974)*fn2 and therefore reverse the order quashing the indictments.
The incident giving rise to this appeal began with an argument between the defendant-appellee and three other men. The altercation escalated to the point of physical abuse during which the appellee drew a knife. In the course of the ensuing scuffle, two of the men were stabbed as well as one woman who was attempting to disentangle the participants. Three sets of charges were brought against the appellee as a result, each
[ 232 Pa. Super. Page 137]
consisting of aggravated assault, possession of an instrument of crime and possession of a prohibited offensive weapon. One set was brought in the name of each of the three victims. At the close of the testimony elicited at the first preliminary hearing,*fn3 held before a municipal court judge, the assistant district attorney requested that the count of aggravated assault pertaining to the female victim, who had been injured while attempting to restrain the appellee, be reduced to a charge of simple assault. The hearing judge, believing that the newly added misdemeanor necessitated a separation of the trials, ordered that the simple assault charge be tried in the municipal court and set a date and a room for that trial. The appellee was then bound over to the grand jury on the remaining charges heard that day. The appellee's counsel, Mr. Gottlieb, did not object to this division of the charges but on the contrary indicated his agreement and understanding of the proposed procedure after it had been thoroughly discussed. The only effort made by the appellee's counsel to consolidate the charges was a request that the charges involving the two male victims be brought together.
Indictments on the aggravated assault and weapons charges considered at the first preliminary hearing were returned on February 5, 1974. The municipal court trial was then held on the simple assault charges, following the return of the first indictments. At the municipal court trial the appellee was convicted of the assault on the female victim and sentenced to a year probation. In due course the second preliminary hearing
[ 232 Pa. Super. Page 138]
was held on the remaining charges involving the second male victim and indictments were subsequently returned. The appellee filed applications in the court of common pleas to have both sets of indictments quashed. The motions to quash were granted and this appeal by the Commonwealth followed.
The appellee argued below in support of his motion to quash and presently argues to this Court that the constitutional safeguard against double jeopardy*fn4 prevents his trial on any of the offenses for which he was indicted. He points out that the municipal court trial was held on charges arising from the same criminal episode as those charges for which the Commonwealth now seeks to indict him. Since he was already convicted in the municipal court, he ...